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Goh v. The Department of Air Force

United States District Court, E.D. California

April 8, 2015

ROBERT GOH, M.D., Plaintiff,
v.
THE DEPARTMENT OF THE AIR FORCE; DEBORAH LEE JAMES, in her official capacity as SECRETARY OF THE AIR FORCE; DOES 1-25, Defendants.

MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION FOR JUDICIAL REVIEW (Doc. 33)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiff Robert Goh is doctor who was employed by the Veterans' Administration (VA), but worked in a hospital operated by the United States Air Force. Dr. Goh was accused of misdiagnosing a heart attack, and his records were reviewed, resulting in a restriction of his hospital privileges. Dr. Goh contends that the Air Force unjustifiably restricted his privileges at the hospital. He seeks a review of this decision under the Administrative Procedure Act (APA).

II. LEGAL BACKGROUND

The protocol the Air Force followed when it evaluated the charges against Plaintiff is described in Air Force Instruction 44-119. AR 00001-244. When a provider's (such as a physician's) "conduct, condition, or performance requires immediate action to the protect the safety of patients or the integrity of the [Air Force Medical Service]..., " the provider is removed from duties pending an investigation. AR 00134. The first step in this process is that the facility's Credential Function Chairperson or Medical Treatment Facility Commander (MTF/CC) issues a 30-day abeyance during which the physician may not treat patients. AR 00135. If the investigation takes longer than 30 days, the abeyance becomes a "summary suspension." Id. The MTF/CC appoints one or more peer officers to determine "if there are clinical practice deficits that are or may affect patient safety." Id. The investigating officers send a report of their findings to the Credential Function Chairperson. Id. "The report should organize the factual findings of the inquiry, and include the investigating officer's conclusions or recommendations." AR 00135-36. A Credentials Function, consisting of three privileged providers meets to evaluate the inquiry report. AR 00137. At least one member of the Credentials Function must be a peer, meaning they have a similar Air Force specialty code, background, rank, grade, and years of professional experience. Id. The Credentials Function then makes recommendations to the MTF/CC and Credentials Function Chairperson regarding the provider's clinical privileges. AR 00138. The MTF/CC decides whether to reinstate, restrict, reduce, or revoke the provider's privileges. AR 00138-39. The MTF/CC must give written notification to the provider of the intent to take action and must identify "the reasons for the action to include all specified allegations. " AR 00139 (emphasis in original).

If a provider's privileges are denied, reduced, restricted, or revoked, the provider is entitled to a hearing. AR 00139. The provider has a right to hire an attorney, to present evidence and call witnesses. AR 00140. The Air Force must disclose its witnesses to the provider prior to the hearing and allow its witnesses to be cross-examined. Id. The Credentials Function Chairperson appoints a hearing panel consisting of three privileged providers, including one person who is a peer of the provider. Id. The hearing panel may not include officers involved in the earlier review. Id. The most senior member of the panel acts as its chair. A legal advisor is also present to rule on procedural matters. AR 00141. The hearing is not constrained by formal evidentiary rules. Id. The hearing panel weighs the evidence and makes recommendations as to whether clinical privileges should be reinstated, restricted, reduced or revoked. Id. "The recommended action must be made by majority vote and in good faith, is required to be based upon prevailing professional standards and on findings and conclusions from the evidence." AR 00142. Factual findings must be supported by a preponderance of the evidence. AR 00142. The Air Force defines this term as meaning "the greater weight of credible evidence or that the factual allegation by the Medical Group is more likely than not true." Id. The panel has up to 20 days from the date of the hearing to complete their written recommendations. Id. Upon review of the panel's recommendations, the provider may submit a written statement of exceptions and corrections. AR 00143. The MTF/CC reviews the recommendations and the evidence and makes a final decision as to the provider's privileges. Id. The MTF/CC is not bound by the panel's recommendations. Id. the MTF/CC must provide written notification of the final decision and provide reasons for the final action. Id.

Providers may appeal the MTF/CC's final decision in writing to the Air Force Surgeon General (AF/SG). Id. A legal advisor reviews the administrative and due process aspects of the case. AR 00144. An "expert" peer reviews the clinical evidence. Id. The legal advisor and peer reviewer present their findings to the Medical Practice Review Board (MPRB). Id. The MPRB reviews these findings and makes a final action recommendation to the AF/SG. Id. The AF/SG makes the final decision as to whether a provider's privileges will be affected. Id.

III. FACTUAL BACKGROUND[1]

Plaintiff was employed by the VA, but worked and held privileges at the Mike O'Callaghan Air Force hospital in Las Vegas, Nevada (The Hospital).[2] JSR ¶ 4(a). On March 7, 2011, the Air Force notified Plaintiff by letter that his hospital privileges would be held in abeyance pending an inquiry and review of his records. AR 00245-46. The letter explains that this action was taken "in response to a report of concern over quality of care and patient safety specifically the discharge from the emergency department of a patient having a myocardial infarction without diagnosing or addressing this concern." Id. at 00245.

Plaintiff resigned his position with the VA on March 10, 2011. AR 01275. Subsequently, Major Jason Tyler performed a review of 74 of Plaintiff's medical records and found 15 records that demonstrated "significant discrepancies ranging from lack of adequate documentation to failure to meet standard of care." AR 00248 ¶ 3. Based on these findings, a Credentials Function met on June 15, 2011 and proposed unanimously to restrict Plaintiff's hospital privileges such that he would require supervision for the his next 360 patient interactions and have his charts reviewed for the subsequent 360 patient interactions. Id. ¶ 4. The committee also decided that before it would recommend implementation of this decision, it would review additional records taken from 13 days of patient interactions. Id. ¶ 5. The MF/CC approved this course of action. Id. The Credentials Function, now consisting of the chairperson, six voting members and two non-voting advisors subsequently reviewed an additional 102 of Plaintiff's records. AR 00260. The Credentials Function found "discrepancies" in 22 of these records, and that 13 these demonstrated a failure to meet the standard of care. AR 00252. Plaintiff was notified of these "discrepant" records in a letter dated July 15, 2011. AR 00252-59. In four cases, the reviewers found that Plaintiff failed to meet the standard care because he did not perform thorough examinations or arrange for appropriate follow-up care for patients complaining of chest pain. AR 00253-59 ¶¶ 2(g), (x), (bb) & (tt). In an additional four cases, reviewers found that the standard of care was not met because Plaintiff did not perform clinically indicated pelvic exams. AR 00254-56 ¶¶ 2(m), (n), (v) & (y). Based on these findings, the Credentials Function proposed unanimously to restrict Plaintiff's privileges in the manner previously discussed. AR 00261. The AF/MC advised Plaintiff that he was proposing to restrict his privileges because of the credential function's findings indicated that a potential existed for Plaintiff's actions to have adverse effects on patient care and safety. AR 00262, 00269.

Plaintiff elected to have a hearing committee review the proposed privilege restrictions. AR 00272. A live hearing was conducted on October 26, 2011. AR 00284. The hearing panel consisted of three physicians: Joseph Procreva, Jason Garner and Karl Brown. AR 00286.[3] Captain Christopher David, MD, who worked with Plaintiff at the Air Force hospital, testified on behalf of the Air Force. AR 00344. Dr. David testified that certain providers had expressed concern over Plaintiff's willingness to accept risk. AR 00366-67. Dr. David testified that he helped review some of the cases for the Credentials Function. AR 00350. Dr. David also discussed that he thought several of the "discrepant" cases were problematic because Plaintiff did not adequately document his medical decision-making. AR 00372-73. Plaintiff testified on his own behalf that the paper charting system was the reason his charts may have appeared incomplete. AR00477-479. Plaintiff also testified that he disagreed that the cardiac and pelvic pain patients identified by the committee required more extensive work-ups. AR 00479-82. Plaintiff also presented Dr. Michael Lambert as an expert witness. AR 00484. Dr. Lambert testified that while he may have handled some of the cases differently himself, he believed Plaintiff was competent to practice medicine. AR 00504.

The hearing committee members reviewed the 49 "discrepant" cases and agreed that in 22 of these cases, the allegations were substantiated by the medical records. AR 01241-01252. In an additional eight cases, the panel found that the charges were "partially substantiated." Id. Allegations were considered partially substantiated when it appeared that the charts were incomplete or where lab results were not addressed. See e.g. AR 01243 ¶ (i) ("Partially Substantiated (Why): labs not addressed."). In a total of 23 of the 30 substantiated and partially substantiated cases, the panel found that the standard of care was not met. AR 01241-01252. The panel ultimately concluded that these charts showed "a pattern of incomplete charting and lack of thorough work up of potentially serious illnesses." AR 01252. On this basis, the panel recommended restricting Plaintiff's privileges for six months. Id. Plaintiff filed a statement of exceptions and corrections challenging the panel's findings on January 2, 2012. AR 01259-74. The MF/CC, however, upheld the panel's recommendations, directing that Plaintiff's privileges be restricted "until such time as your noted clinical deficiencies have been corrected." AR 01275.

Plaintiff then filed an appeal of this decision arguing that Plaintiff's performance was within the reasonable scope of the standard of care, that all of his decisions were evidence-based, and that members of the hearing panel did not have sufficient experience to evaluate his actions. AR 01276-01278. In rebuttal, the MF/CC responded that Plaintiff's failure to meet the standard of care in 22 cases out of 192 was "egregious" and that Plaintiff did not object to the final composition of the panel at voir dire. AR 01280-81. Members of the MPRB reviewed the record and agreed with the findings of the Hearing Panel because "significant issues existed with [Plaintiff's] documentation, as well as his management of certain patients." AR 01285. The MPRB was specifically concerned with Plaintiff's handling of patients presenting with chest and pelvic pain. Id. The Surgeon General ...


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